Fayette circuit judge: 'The death penalty probably should not be a penalty, ever'

In an unusual display from the bench, Fayette Circuit Judge Pamela Goodwine said Thursday that the "death penalty should not be a penalty, ever," but she denied a defense motion to exclude execution as a possibility for a co-defendant charged with complicity to murder.

"Something needs to be done legislatively in Kentucky and in every state in the U.S.," Goodwine said, her voice rising. "... I think the death penalty probably should not be a penalty, ever."

Her comments came at the end of a hearing in which the defense for Robert Guernsey, 33, had sought to preclude execution as a possible penalty for jurors to consider at trial. Guernsey and two co-defendants are accused in the Sept. 3, 2013, robbery and death of Derek Pelphrey, 23, who was shot in his car on Ridgepoint Road near Spangler Drive.

Defense attorney Russ Baldani argued that Guernsey should not face the death penalty because he was not the one who shot Pelphrey. But Goodwine didn't buy that argument.

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"As the law in Kentucky stands right now ... he's death-eligible as a conspirator in this case," Goodwine said. "That's the law as it stands right now. I, as a trial judge, have to follow that law whether I agree with it or not. If I had my druthers, there would be no death penalty in Kentucky."

But she added, "I will do what the law requires me to do."

It is unusual for a judge — and Goodwine in particular — to share personal opinions so boldly from the bench. But Goodwine expressed frustration with the expense, time and emotional toll death-penalty cases take on participants.

Guernsey, Trustin B. Jones, 20, and his cousin, Desmond Jones, 23, all face the possibility of execution if convicted. In a decision in this case last year, Goodwine rejected a defense motion that the death penalty was unconstitutional. The three co-defendants are scheduled to go on trial June 1.

Lexington police testified during a 2013 preliminary hearing that Pelphrey, a student at Bluegrass Community and Technical College, was targeted because he was thought to have drugs and a large amount of money.

"He did not provide the gun used to shoot Mr. Pelphrey?" Baldani asked.

"No," Upchurch said.

In his argument to the judge, Baldani said, "You cannot give the death penalty to someone who did not kill and who did not intend for someone to be killed."

Baldani cited a 1982 U.S. Supreme Court decision in which the question before the court was whether death was a valid penalty for someone who neither took life, attempted to take life, nor intended to take life. The majority of the court said the record did not support execution when a defendant "aided and abetted a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill or intend that a killing take place... ."

But Assistant Commonwealth's Attorney Andrea Williams portrayed Guernsey as the one who enlisted Trustin Jones to rob Pelphrey. And, citing Upchurch's testimony, Williams noted that Guernsey lied repeatedly to police about his involvement, specifically enlisted Trustin Jones because Guernsey wanted a "gangsta" who could intimidate others, instructed there was to be a "beat down" for the money, and supplied information about where Pelphrey could be found and what kind of vehicle he drove.

"Mr. Guernsey is the reason that Derek Pelphrey is dead in this case," Williams said. "He is absolutely eligible for the death penalty."